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[63]
[2026] FWCFB 22
General information, not legal advice.
Fair Work Commission (Full Bench)
2026-01-27
Original judgment source is linked above.
s 158 - Application to vary or revoke a modern award
Application by Naina re CSIRO Enterprise Award 2016
Application to vary the CSIRO Enterprise Award 2016 - employment under fixed term contracts.
[1] Ms Naina has applied to vary the CSIRO Enterprise Award 2016 (CSIRO Award) under ss 158(1) and 160(2)(b) of the Fair Work Act 2009 (FW Act). The variations she seeks are described in her application in the following terms:
I am requesting that the Commission vary the CSIRO Enterprise Award 2016 by:
Amend clause 3.2 in the CSIRO Enterprise Award 2016 as follows:
'This award does not cover an employee excluded from award coverage by the Act and employees who are covered by the CSIRO Enterprise Agreement and employers in relation to those employees'.
This suggestion is consistent with clause 4 in the CSIRO Enterprise Agreement 2023-2026 outlining the Scope of the Agreement that states 'This Agreement operates to the exclusion of all previously applicable Agreements or Awards certified under the Industrial Relations Act 1988, Workplace Relations Act 1996 and the Fair Work Act 2009.'.
Amend clause 6.7 Specified term employment in the CSIRO Enterprise Award 2016 as follows:
'The coverage under the CSIRO Modern Award 2016 has no legal force for the purpose of granting exceptions under s 333F(1)(h) for employees covered by the CSIRO Enterprise Agreement'.
In line with the recent Decision regarding the Higher Education Industry Award and the review of fixed-term contract provisions, include a clarifying note under clause 6.7 stating as follows:
'The exception under section 333F(1)(h) of the Fair Work Act 2009 may only operate in respect of a contract of employment where that contract is expressly permitted under the terms of clause 6.7 of this Award. Where clause 6.7 does not apply to a particular fixed-term contract, section 333F(1)(h) does not operate to provide an exception to the limitations set out in section 333E(1).'
This amendment ensures the clause is consistent with the intent and effect of the fixed-term contract provisions under the Fair Work Act and prevents the misuse of Award coverage where clause 6.7 does not actively apply to the relevant employment arrangement.
[2] Ms Naina's application was filed on 7 July 2025. At that time, Ms Naina was employed by the Commonwealth Scientific and Industrial Research Organisation (CSIRO), the employer to which the CSIRO Award applies, pursuant to a fixed term employment contract. However, by the time the application was the subject of an initial directions hearing on 29 July 2025, Ms Naina was no longer employed by the CSIRO as a result of the term of her contract of employment ending on 14 July 2025. That fact does not deprive Ms Naina of standing to make her application but, as we explain, is significant in the assessment of its merits.
[3] On 29 July 2025, the President directed Ms Naina to file, by 3 October 2025, an outline of submissions and any witness statements or other evidence upon which she sought to rely. On 2 October 2025, Ms Naina filed a submission which attached a number of documents. She did not file any witness statements.
[4] The matter was the subject of a further directions hearing on 14 October 2025. At this directions hearing, the President indicated that consideration would be given as to whether the application could be determined on the basis of the material filed by Ms Naina before the CSIRO was directed to file any material in response.
[5] On 24 October 2025, the President referred the matter to this Full Bench for determination.
[6] For the reasons which follow, we consider that Ms Naina's application has no reasonable prospects of success. The application is dismissed pursuant to s 587(1)(c) of the FW Act.
[7] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (SJBP Act) amended the FW Act to, among other things, add Division 5 - Fixed term contracts to Part 2-9. Division 5, in broad terms, constitutes a scheme by which the use of fixed term contracts in employment is restricted. Section 333E places temporal limitations on the use of fixed term contracts. It provides:
(a) the person enters into a contract of employment with an employee; and
(b) the contract includes a term that provides the contract will terminate at the end of an identifiable period (whether or not the contract also includes other terms that provide for circumstances in which it may be terminated before the end of that period); and
(c) the employee is not a casual employee of the employer for whom the period referred to in paragraph (b) is identified by reference to the completion of the shift of work to which the contract relates; and
Note 1: This subsection is a civil remedy provision (see Part 4-1).
Note 2: A contract referred to in this subsection includes (and is not limited to) a contract of employment for a specified period of time, for a specified task or for the duration of a specified season.
(2) This subsection applies if the identifiable period is greater than 2 years.
(a) the sum of the identifiable period and any other period for which the contract may be extended or renewed is greater than 2 years; or
(b) the contract provides for an option or right to extend or renew the contract more than once.
(4) This subsection applies if the contract comes into effect after another contract (the previous contract) of employment between the person and the employee in circumstances referred to in subsection (5).
(5) The circumstances for the purposes of subsection (4) are:
(a) the previous contract included a term that provided that the contract would terminate at the end of an identifiable period (whether or not the contract also includes other terms that provide for circumstances in which it may be terminated before the end of that period); and
(b) the previous contract was for the employee to perform the same, or substantially similar, work for the person as the employee is required to perform under the contract referred to in paragraph (1)(a) (the current contract); and
(c) there is substantial continuity of the employment relationship between the person and employee during the period between the previous contract terminating and the current contract coming into effect; and
(i) the sum of the period for which the previous contract was in effect and the identifiable period referred to in paragraph (1)(b) for the current contract is greater than 2 years;
(ii) the current contract contains an option for renewal or extension;
(iia) the previous contract contained an option for extension that has been exercised;
(iii) the previous contract came into effect after another contract (the initial contract) that satisfies the requirements of paragraphs (a) and (b) of this subsection and there was substantial continuity of the employment relationship between the person and the employee during the period between the initial contract terminating and the previous contract coming into effect.
[8] Section 333F(1) provides for exceptions to the limitations in s 333E. Relevantly, s 333F(1)(h) provides:
(1) Subsection 333E(1) does not apply in relation to a contract of employment entered into by a person and an employee if:
(h) a modern award that covers the employee includes terms that permit any of the circumstances mentioned in subsections 333E(2) to (4) to occur; ...
[9] The CSIRO Award is a modern enterprise award which was made in 2016 on the application of the CSIRO and with the consent of the Community and Public Sector Union (CPSU) and the Australian Manufacturing Workers' Union (AMWU): [2016] FWCFB 5874. Clause 3.1 of the CSIRO Award provides that the award covers all person appointed pursuant to s 32 of the Science and Industry Research Act 1949 (Cth) to the exclusion of any other modern award. This effectively encompasses all 'officers' (i.e. staff) of the CSIRO apart from the Chief Executive. Clause 3.2 provides that the award does not cover an employee excluded from award coverage by the FW Act.
[10] Clause 6 of the CSIRO Award concerns 'Types of employment'. Clause 6.1 provides that employees under the award will be employed in one of three categories: 'indefinite', 'casual' or 'specified term'. Clause 6.2 provides that, subject to clause 6.7, indefinite employment will be the standard form of employment at the CSIRO. Clause 6.7 provides:
(a) Specified term employment means employment for a specified period of time.
(b) CSIRO may appoint an employee for a specified term in the following circumstances:
(i) where the appointment is to cover the temporary absence of another employee on a recognised form of leave or secondment/temporary transfer;
(ii) where the appointment is clearly of a limited term nature in that the work:
(iv) where the employer wishes to employ a recognised specialist in a field for a short period;
(v) where appointment is as a designated Post-Doctoral Fellow for which a training/development program has been devised;
(vi) where appointment is as a designated trainee, including a bona fide apprenticeship scheme or a government sponsored employment and training scheme;
(vii) where an external appointment is made to a senior management position; or
(viii) where a specified term appointment is preferred by the appointee and this is acceptable to CSIRO.
(c) There will be no link between funding source and the decision to appoint a person on a term. These criteria will also apply to the reappointment of an employee to a further term appointment.
A single term of specified term employment or the aggregate of continuous periods of specified term employment will not exceed five years, except:
(i) appointments or reappointments made in accordance with subclauses 6.7(b)(vii) and 6.7(b)(viii); or
(ii) the appointment of Post-Doctoral Fellows, which may not exceed three years and the date of final cessation of the Fellowship will be no later than the date on which the employee's work experience, relevant to his/her discipline (both inside and outside CSIRO), since confirmation of his/her doctorate, totals six years.
[11] It may be seen that clause 6.7(d) of the CSIRO Award permits a person to be employed pursuant to a fixed term contract or contracts for a period of up to five years subject to the specified exceptions. Although it is not necessary for us to draw any final conclusion about this, it appears that clause 6.7(d) engages the exception in s 333F(1)(h) to the prohibition in s 333E(1). That certainly seems to be the premise of Ms Naina's application.
[12] A series of enterprise agreements has applied to the CSIRO and its employees since the FW Act was enacted. The principal current agreement is the CSIRO Enterprise Agreement 2023-2026 (CSIRO Agreement). It covers all CSIRO officers apart from senior executives who are members of the Executive Team and officers covered by a separate enterprise agreement applying to the Canberra Deep Space Communication Complex at Tidbinbilla in the Australian Capital Territory. Clause 10.1 of the CSIRO Agreement provides for the same three types of employment as clause 6.1 of the CSIRO Award, and clause 10.2 provides that, subject to Schedule 2 of the CSIRO Agreement, indefinite employment will be the standard form of employment in the CSIRO. Schedule 2 provides for the circumstances in which officers may be appointed on a specified term. The expression of these circumstances is somewhat different to clause 6.7 of the CSIRO Award. Paragraph 2(a) of Schedule 2 relevantly provides that, subject to paragraph 3 (which establishes 'special conditions' applicable to CSIRO Early Research Career Postdoctoral and Engineering Fellows) no single period of term appointment shall exceed five years. We note that, unlike the CSIRO Award, this appears to allow employment under multiple fixed term contracts to exceed five years in total duration.
[13] Ms Naina was employed by the CSIRO under a series of six fixed term contracts from 16 January 2023 until 14 July 2025. The final contract was a 12-month contract. On 29 May 2025, Ms Naina made an application under s 333L of the FW Act for the Commission to deal with a dispute between herself and the CSIRO concerning her fixed term employment. In her application, Ms Naina alleged that her employment contravened the prohibition in s 333E because it had extended over a period in excess of two years. The CSIRO's response was that the exception in s 333F(1)(h) applied because Ms Naina's employment was permitted by clause 6.7 of the CSIRO Award. Under s 333L, read together with s 595, the Commission is empowered to deal with a dispute about a fixed term contract by mediation, conciliation, making a recommendation or expressing an opinion, but can only deal with a matter by arbitration where both parties agree that it should do so. The Commission (Lim C) conducted two conferences in the matter, but the dispute was not able to be resolved. The CSIRO did not consent to arbitration and, on 30 June 2025, Ms Naina discontinued.
[14] The grounds of Ms Naina's application and her submissions do not clearly distinguish between matters relevant to the application as brought under s 158(1) as distinct from s 160(2)(b). In respect of the former, the main propositions advanced by Ms Naina appear to be:
The CSIRO Award undermines Division 5 of Part 2-9 of the FW Act because it allows rolling contracts that circumvent s 333E. This directly undermines the legislative intent of the SJBP Act reforms, which were designed to enhance job security and prevent misuse of short-term contracts. By enabling indefinite use of fixed term contracts for ongoing work, the CSIRO Award contravenes both the public interest and Parliament's objective of secure employment.
The CSIRO Award is currently being applied in a manner that permits endlessly-rolling fixed term contracts under the CSIRO Agreement, with no effective restrictions on a practice that the legislative reforms have deemed unnecessary and inappropriate.
Indefinite employment should be the standard, but the CSIRO's standard use of fixed term contracts contradicts this principle. The Commission must ensure awards are fair and relevant; an award that undermines indefinite employment is inconsistent with its statutory obligations and should be varied.
The proposed variation is necessary to achieve the modern awards objective in s 134(1) of the FW Act. The CSIRO Award is not operating as a fair and relevant safety net in this context, but as a means to undermine the CSIRO Agreement and legislative protections.
Rolling fixed term contracts undermine job security (s 134(1)(aa)), leaving workers unable to plan financially or professionally.
Dual reliance on the CSIRO Agreement and the CSIRO Award creates confusion, which is inconsistent with the need for clarity, simplicity and sustainable application (s 134(1)(g)); a variation would ensure the award functions clearly alongside the enterprise agreement.
The reliance on a loophole also undermines the promotion of cooperative and productive workplace relations (s 134(1)(d)), fostering distrust between employees and the CSIRO. Modern awards exist to provide a baseline safety net where no other instrument applies. In the case of the CSIRO, the CSIRO Agreement comprehensively regulates employment, and it was never the purpose of the CSIRO Award to allow the CSIRO to access exceptions to restrictions on fixed term contracts in a way that undermines the security of employees covered by the CSIRO Agreement.
The CSIRO Award is not 'fit for purpose': it was established under a legislative framework that predates the SJBP Act reforms. It is essential that the CSIRO Award be reviewed and, where necessary, amended to ensure consistency with these reforms, which were expressly designed to strengthen access to secure work and give effect to the modern awards objective. Maintaining alignment with the current legislative framework is critical to ensuring that the CSIRO Award both fulfils its statutory objectives and remains legally compliant.
Revising the CSIRO Award to remove or limit the broad exception for fixed term contracts would establish a more appropriate 'better off overall' benchmark for future enterprise agreements, encouraging greater transparency around fixed term contracts and ensuring employees have a meaningful opportunity to influence employment conditions.
The Commission can resolve this by varying the CSIRO Award to clarify that s 333F(1)(h) exceptions do not apply where an enterprise agreement exists. This change would still allow fixed term contracts for genuine limited needs but would prevent the CSIRO Award from being used to bypass the reforms and undermine job security.
[15] In respect of s 160, Ms Naina submits that there are competing interpretations of the limitations in s 333E and the exception in s 333F(1)(h). She characterises the competing interpretations as follows:
The exception applies whenever any term in a Modern Award that covers the employee in question permits fixed-term contracts, regardless of whether the employee's contract fits those terms. This means one permissive Award clause can nullify all fixed-term limitations, even if other restrictions aren't addressed, resulting in a broad, passive application of the Award. There is ambiguity regarding the operation of these provisions in circumstances where an Enterprise Agreement both covers and applies to an employee.
The exception applies only if the employee's contract specifically aligns with the fixed term clause in the Modern Award and the clause of the Award applies in relation to a particular contract of employment i.e., the Award applies to the employee. Only the limitations directly matched by the Award terms are exempted, ensuring the exception is strictly limited and consistent with the contract and award.
[16] Ms Naina further submits that the CSIRO Agreement applies to the employment of CSIRO employees to the exclusion of the CSIRO Award. However, on the 'broad interpretation', the 'passive coverage' of the CSIRO Award engages the s 333F(1)(h) exception, meaning none of the s 333E limitations apply to CSIRO employees, contrary to the intent of the SJBP Act reforms. The interaction of s 48(3) with s 57 of the FW Act creates confusion, and modern award coverage actively affects the terms and conditions of employment while employees are under an operative enterprise agreement, against the purpose of s 57.
[17] Insofar as Ms Naina seeks a determination varying the CSIRO Award under s 157(1), it is necessary for her to satisfy us that making such a determination is necessary to achieve the modern awards objective (ss 134(1) and, in the case of an enterprise award, s 168B(1)). Except in relation to proposed variations which are obvious as a matter of industrial merit, significant award changes which are reasonably contestable must generally be supported by an analysis of the relevant legislative provisions and, where feasible, probative evidence. In assessing an application for variation of a modern award, the Commission will take into account previous decisions relevant to any contested issue, and will proceed on the basis that, prima facie, the modern award achieved the modern awards objective at the time it was made: Penalty Rates Decision [2017] FWCFB 1001, 265 IR 1 [269]; Application by Treves [2023] FWCFB 98 (Treves) [68].
[18] Ms Naina's application proceeds on the premise that there is a self-evident inconsistency between clause 6.7 of the CSIRO Award and the legislative purpose of Division 5 of Part 2-9 of the FW Act. There is plainly no such inconsistency. To the contrary, s 333F(1)(h) evinces a legislative intention to preserve the operation of terms in modern awards which permit employment under fixed term contracts for periods in excess of the temporal limitations prescribed in ss 333E(2) to (4). This legislative intention is confirmed by s 141A(2), which was also added to the FW Act by the SJBP Act and relevantly provides that 'a modern award may include terms that permit any of the circumstances mentioned in subsections 333E(2) to (4) (about certain fixed term contracts) to occur'. Accordingly, on no view can the variation sought by Ms Naina be characterised as one of obvious merit that does not need to be supported by probative evidence or a proper analysis of the legislative scheme.
[19] It may be that clause 6.7 of the CSIRO Award does require a proper review in light of other amendments to the FW Act effected by the SJBP Act, including the addition of paragraph (aa) to the modern awards objective in s 134(1) referring to 'the need to improve access to secure work across the economy' and the inclusion of the 'promot[ion] of job security' in the object of the FW Act in s 3(a). However, Ms Naina has not filed any evidence, with the result that there is no information before us concerning matters such as the extent to which the CSIRO engages fixed-term employees, the typical period of their engagement, the purposes for which such employees are engaged, and whether the CSIRO's use of fixed-term employment negatively affects access to secure work. Accordingly, there is no basis upon which we could be satisfied that there is an arguable case for a review of clause 6.7.
[20] A number of recent decisions, primarily Full Bench decisions, have emphasised that an application to vary a modern award which is advanced by reference to the applicant's interests and circumstances only, and which is not supported by evidence or submissions addressing the circumstances of a representative cross-section of the industry or occupation covered by the relevant modern award, is unlikely to have reasonable prospects of success: see Treves [70], [72]-[74]; Application by Woolworths Group Limited [2023] FWCFB 139 [39]; Application by The Allison and Phil Family Trust t/a my OSHC [2024] FWCFB 144 [18]-[20]; Application by Darren Hay [2024] FWCFB 446 [22]; Application by Martinez [2024] FWC 2648 [7]-[9]. That is because the modern awards objective in s 134(1) speaks to matters of general rather than individual application.
[21] We think that proposition is applicable to a modern enterprise award, taking into account that s 168B(1) requires recognition of award terms and conditions tailored to reflect employment arrangements that have been developed in relation to the relevant enterprises. In this case, not only has Ms Naina not provided any evidence or submissions relevant to the CSIRO's use of fixed term employees generally, she has not even provided more than very limited information about her own circumstances. Thus, she has not explained for what purpose she was employed, whether ongoing employment in her role was a viable proposition, and what if any prejudice she has suffered as a result of the fixed-term employment arrangements she entered into with the CSIRO.
[22] Further, there is no basis to conclude that anyone to whom the CSIRO Award currently applies is dissatisfied with the fixed-term employment provisions in clause 6.7. The CSIRO opposes the application. The CPSU adopted a neutral position at the first directions hearing and did not appear at the second directions hearing. The AMWU did not appear in the proceedings at all. No employee of the CSIRO indicated any interest in the matter. Ms Naina has conceded that she does not represent the interests of anyone apart from herself. When asked what the purpose of the application was given that she was no longer employed by the CSIRO, Ms Naina said that she was 'just doing it from the higher moral ground' and that she 'wouldn't want anyone else to go through it all': Transcript, 14 October 2025 PN67. That is not a proper basis upon which to demonstrate that the variation of a modern award is necessary to achieve the modern awards objective. Although individual employees covered by a modern award have standing to apply for the variation of that award under s 158(1), it is not a means for such individuals to pursue personal grievances, grind axes or ride hobby horses. As earlier stated, the modern awards objective is concerned with matters of general and public importance and interest.
[23] In respect of that aspect of the application which relies on s 160, it is necessary for Ms Naina to establish at the outset that a relevant provision of the CSIRO Award - presumably clause 6.7 - is ambiguous, uncertain or attended by error. However, Ms Naina advances no contention to that effect in relation to clause 6.7 or any other provision of the CSIRO Award. Her asserted competing 'broad' and 'narrow' interpretations relate to the operation of ss 333E and 333F(1)(h) of the FW Act, not to any provision of the CSIRO Award. The alleged ambiguity or uncertainty arises from the fact that the exception in s 333F(1)(h) operates where the relevant modern award covers, rather than applies, to the relevant employee, so that the exception may operate even where, in accordance with s 57(1), an enterprise agreement rather than the award applies to the employee. These are not matters with which s 160 is concerned. Ms Naina has not identified any arguable case that any provision of the CSIRO Award is ambiguous, uncertain or attended by error. Her application under s 160 therefore does not have reasonable prospects of success.
[24] We finally observe that the actual variations to the CSIRO Award sought by Ms Naina would not on any view be made by us. The first proposed variation would remove most CSIRO employees from the coverage of the CSIRO Award entirely (not just in relation to fixed term employment) and likely infringe the prohibition in s 163(1). The second proposed variation purports to limit the operation of s 333F(1)(h). A modern award provision cannot have that legal effect. The third proposed variation would simply add an explanatory note to clause 6.7 of the CSIRO Award without changing its operative effect, and thus would not address any of the matters raised by Ms Naina's application.
[25] For the above reasons, we conclude that the application does not have reasonable prospects of success. There is no purpose to be served by requiring the CSIRO to file evidence and submissions in response to Ms Naina's case. We dismiss the application.
B Barton and J Hanna for the Commonwealth Scientific and Industrial Research Organisation.
K Barlow and s Conlon for CPSU, the Community and Public Sector Union.
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